Fitzgerald v. International Flax Twine Co.

JAGGARD, J. (after stating the facts as above). The facts, which have been stated at some length, may, for present purposes (see Strutzel v. St. Paul City Ry. Co., 47 Minn. 543, 50 N. W. 690), be thus summarized: Plaintiff was at work on a large flax ma: — 144 — chine. Extending along its front and along its rear were rods by which it was started and stopped. The back of the machine was protected by a shield. The flax passed over guides, through one set of rollers, then over a plate to the middle set of rollers, then through and under them to a revolving bed of needles, and thence through other rollers out of the front of the machine to a tension machine. The strands of flax frequently broke. It was then the duty of the girls at work in the front or in the back of the machines to splice the separated ends. The testimony is not clear as to the exact boundary line on the machine at which the duty of the girl at the back ended and that of the girl in front began. In a general way it appeared that each worked over her respective ends toward the middle roller. Shortly before plaintiff was hurt, the superintendent’s attention was called to a derangement of the tension device. He stopped the machine and began the adjustment of the tension device. Plaintiff went back to the rear of the machine on which she was hurt to splice a parting strand of flax near the middle roller. While she was so engaged, the machine was started in motion without warning. The jury found specially that the foreman started the machine. While the preponderance of evidence on this point may have agreed with defendant’s contention that the foreman did not start it, there was sufficient evidence to sustain the jury’s special verdict. We are of opinion^ also, that there was sufficient evidence to justify the finding of the jury that it had been customary for the protection of employees to give warning, before the machine was started into motion. Plaintiff’s left hand was caught between the needles and the bar and injured. 1. The first question presented by the assignments of error is whether a case of prima facie negligence on the part of the defendant was made out by proof that plaintiff was, at the time of her employment, under sixteen years of age. This controversy is determined for the plaintiff by Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. 416. There, as here, the court charged that the employment of a servant under the age of sixteen years was in violation of the statute, and injury from machinery which she was attending at the time made a prima facie case of negligence against defendant, so that if the plaintiff had rested upon this proof, and no evidence had been introduced to — 145 — contradict it, he would have been entitled to recover. That charge was sustained. And see Rolin v. Tobacco, 141 N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 335; Sterling v. Union, 142 Mich. 284, 105 N. W. 755. Defendant makes this point in this connection: “Section 1809, R. R. 1905, as construed by the supreme court of Minnesota, is in contravention of the fourteenth amendment to the constitution of the United States, in that it deprives the defendant of liberty and of its property without due process of law and denies to it the equal protection of the laws.” We think it quite obvious that the point is not well taken, and refer to it only to preserve defendant’s record; Defendant also assigns as error the permission by the trial court to the plaintiff to amend his complaint by inserting an allegation under which the court received evidence and a certificate as to the duration of the school year. We think no abuse of the discretion of the trial court appeared. The argument as to the impropriety of the certificate, in view of the conclusion reached in the Tozer case, and herein, fails also. 2. The chief contention of defendant on the merits is that plaintiff was engaged in doing her work at a place, and with her hand under the machine, contrary to defendant’s instructions; that defendant could not properly be held to have been negligent either in giving instructions or in failing to anticipate the peril which resulted from her violation of the rules; and that these facts show contributory negligence on plaintiff’s part, as a matter of law. It would be, perhaps, injustice to hold a.s a matter of law that plaintiff was injured while she had her left hand back of and under the shield, and that the special verdict of the jury to that effect was not justified by the evidence. See Joyce v. American, 184 Mass. 230, 68 N. E. 213. The testimony to the contrary, however, is weak and inconsistent. The very nature of her injury, considered in connection with the construction of the machine, is strong and convincing. We have therefore been led to assume that she was injured while in such a position as the defendant claims. On this assumption we are none the less- of the opinion that the appeal presents no reversible error in this regard in view of two pertinent rules of law. — 146 — In the first place, it is clear, beyond controversy, that it is the duty of the master to establish for the protection, especially of minor servants engage.d in dangerous work, as about complicated machinery, adequate regulations, to properly call such rules to their attention, and in some cases to duly instruct them therein. Those instructions must be sufficiently clear, plain, and specific to be intelligently observed. Lovely, J., in Small v. Brainerd Lumber Co., 95 Minn. 95, 103 N. W. 726. When such instructions, having a vital bearing on the right of litigants, are oral, and are the subject of dispute in testimony, their existence and import are for the jury. Seaboard Air Line Ry. v. Shanklin, 148 Fed. 342, 78 C. C. A. 334. It is also a duty of the master to enforce such regulations. Their mere violation by an employee without the master’s acquiescence does not relieve the particular employee from the requirement of abiding by them. Sloan v. Georgia, 86 Ga. 15, 12 S. E. 179. Such violations may, however, be so habitual as to amount to their renunciation or waiver. St. Louis v. Caraway, 77 Ark. 405, 91 S. W. 749; Tullis v. Lake Erie & W. R. Co., 105 Fed. 554, 44 C. C. A. 597; Sprague v. Wisconsin Central R. Co., supra, p. 57, 115 N. W. 104. An employee is not bound by a rule of his master which has not been properly published and brought to his attention and which he has habitually neglected to enforce. Vanderburgh, J., in Fay v. Minneapolis & St. L. Ry. Co., 30 Minn. 231, 15 N. W. 241. Cf. Mackey v. Baltimore & P. R. Co., 8 Mackey. (D. C.) 282. In the case at bar, one Hippie was in the habit of instructing the employees, but he had no independent recollection of the particular oral instructions which he had given to this plaintiff in the noisy shop. At best they were not clear, plain, nor specific. He directed another girl to teach her. She was also to learn from observation. There was testimony that plaintiff, at the time of her injury, was doing her work as she had repeatedly seen other Servants do the same work. The testimony of the girl instructor was as reasonably susceptible of a construction denying as of one affirming defendant’s view of the instructions. At all events, those instructions must be interpreted with reference to the use by the witnesses of the words “here” and “there” and with reference to the difference between the machine which was used as an exhibit and the one on which she was actually injured. It would — 147 — be highly unreasonable to predicate prejudicial error in the submission to the jury of the matter of the giving of instructions. The particular formula on this subject used by the trial court in its final form was, we think, proper. The general verdict therefore was justifiable because the jury may have found that defendant was guilty of a breach of duty to the defendant to make, publish, and enforce proper rules. In the second place, when an employee is at work in a dangerous and improper position,'which has no tendency in the ordinary course of nature and of affairs to result in harm, unless changed by the employer’s act in putting a dangerous agency into motion, and when it is customary, before so doing, for the master to give warning so as to avoid injury, the questions whether the employer was actionably negligent in starting that agency into motion without the usual signal and whether the servant was guilty of contributory negligence are for the jury. One reason for this rule is that the servant, especially á minor en-' grossed in work, has a right to rely on customary signals and is not bound to anticipate negligence on the master’s part in failing to give them. 6 Current Daw, 572, 584. In D’Agostino v. Pennsylvania, 72 N. J. D. 358, 60 Atl. 1113, it was said: “If a workman, who, in the discharge of his duty, has placed himself in a position of probable danger where he has the right to expect a warning before the danger becomes actual, is injured because the warning was not given, the question whether he assumed the risk or was guilty of contributory negligence cannot be decided against him by the court.” In Anderson v. Northern Mill Co., 42 Minn. 424, 44 N. W. 315, plaintiff was engaged in removing sawed lumber. This brought him on a part of a platform, frequently made dangerous by heavy timbers which came down upon it, from the saw above, with great velocity and at irregular intervals. Defendant had adopted and practiced the custom of warning the men upon the' platform of the coming of these timbers by a signal. It was held that it was negligent for the defendant to omit the customary cautionary signal, and that it was not negligence for the plaintiff, engrossed as he was in his work, to rely wholly upon the signal being given.. And see Perras v. A. Booth & Co., 82 Minn. 191, 195, 84 N. W. 739, 85 N. W. 179; Rahman v. Minnesota & N. W. R. Co., 43 Minn. 42, 44, 44 N. W. 522; Erickson v. St. Paul & D. R. Co., 41 Minn. 500, 43 N. W. — 148 — 332, 5 L. R. A. 786; Barber v. Cincinnati (Ky.) 21 S. W. 340; Wills v. Cape Girardeau, 44 Mo. App. 51; Moore v. Wabash, 85 Mo. 588; International v. Wray (Tex. Civ. App.) 96 S. W. 75; Nichols v. Chicago, 69 Iowa, 154, 28 N. W. 571; Pringle v. Chicago, 64 Iowa, 613, 21 N. W. 108; Bird v. Leather, 143 N. C. 283, 55 S. E. 727. The second reason for this rule is that it was at least a question of fact for the jury whether plaintiff’s improper position was under the circumstances of this case a proximate cause of the wrong of which she complains. Many cases on this point can be found collected in 8 Am. & Eng. Ann. Cases, 19-21. Only the primitive law failed to distinguish between a cause and a condition. In 2 Pollock & Maitland Hist. Com. Law, 468, it was pointed out: “Guesswork perhaps would have taught us that barbarians will not trace the chain of causation beyond its nearest link; that, for example, they will not impute one man’s death to another unless that other has struck a blow which laid a corpse at his feet. All the evidence, however, points the other way: I have slain a man if but for some act of mine he might perhaps be yet alive. Very instructive is a formula which was still in use in the England of the thirteenth century: One who was accused of homicide and was going to battle was expected to swear that he had done nothing whereby the dead man was ‘further from life and nearer to death.’ Damages which the modern English lawyer would assuredly describe as ‘too remote’ were not too remote for the author of the Leges Plenrici. At your request I accompany you when you are about your own affairs; my enemies fall upon me and kill me; you must pay for my death. You take me to see a wild beast show or that interesting spectacle, a madman; beast or madman kills me; you must pay. * * * In none of these cases can you honestly swear that you did nothing that helped to bring about death or wound.” Judicial opinion has generally rejected alike this primitive rule and the confusing, and often confused, disputations of the metaphysicians. The serious thought of logicians has not been rejected or abandoned lightly or superciliously. It has. proved too indefinite and impracticable for actual use. See, for example, 1 Wundt, Logik, 525, et seq.; Syst. Phil. 292, et seq. John Stuart Mill has rendered more service, perhaps, than any other scholastic, yet the summary of his contribution has been the addition of a few descriptive adjectives and phrases. In law, as in — 149 — logic (1 Sigwart, Log. 568) “his attempt may be regarded as a failure.” Courts have, however, clearly recognized a distinction between a necessary antecedent and. a responsible cause, and between the- person without whose conduct the wrong could not have occurred and the last human wrongdoer. The proximate cause must have a natural tendency to produce, in the ordinary course of nature and of affairs, the result complained of. “There are two essential elements in contributory negligence, a want of ordinary care, and a causal connection between the act and the injury complained of. * * * When the act and the injury are not known by common experience to be naturally and usually in sequence, and the injury does not, according to the ordinary course of events, follow from the act, then the act and the injury are not sufficiently connected to make the act the proximate cause of the injury. Cooley on Torts (2d Ed.) 73; Beach on Cont. Neg. 32.” Shelby, J., in Kansas City Southern Ry. Co. v. Prunty, 133 Fed. 20, 21, 66 C. C. A. 163. This general view is denied in effect by many authorities, in so many terms by practically none. It is sustained, however, by the clear preponderance of current legal thought. There-is an undeniable distinction between the danger from the performance of work of a servant in an unusual and improper manner and “increased danger * * * not by some peril attendant upon the manner of doing the work, but by a danger arising from a failure of the railroad company to use reasonable care to discharge a duty incumbent by law upon it.” Peoria v. Puckett, 42 Ill. App. 642. “Contributory, negligence is no more than a case of negligence not dependent on any different rule of law, though presupposing the limitation of the issue of negligence to an inquiry as to which of two persons its final- (and wrongful) impulsion is to be attributed.” 1 Beven, Neg. 176. “No one can justly complain of another’s negligence, which; but for his own wrongful interposition, would be harmless. Parker v. Adams, 12 Metc. 415.” Carpenter, J., in Nashua v. Worcester, 62 N. H. 159, at page 163. “The antecedent wrongdoer- is relieved of the onerous and superfluous burden.” Mr. Bohlen, in 21 Harvard Law Rev. 227, 238. Thus, “where the proximate cause of plaintiff’s injury was the negligence of his foreman in giving a signal to start a train after plaintiff had gone in between certain ears and plaintiff’s position at the time was known to the fore — 150 — man, the fact that plaintiff violated a rule of defendant company in going between the cars was a mere intervening cause and was insufficient to prevent recovery.” Alabama v. Bonner (Ala.) 39 South. 619. And see O’Brien, J., in Rider v. Syracuse, 171 N. Y. 139, 147, 63 N. E. 836, 58 L. R. A. 125; Anderson v. Southern, 70 S. C. 490, 50 S. E. 202; Reiter-Connolly v. Hamlin, 144 Ala. 192, 40 South. 280; Baggneski v. Lyman Mills, 193 Mass. 103, 78 N. E. 852; Rolin v. Tobacco, 141 N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 335; Helfenstein v. Medart, 136 Mo. 595, 36 S. W. 863, 37 S. W. 829, 38 S. W, 294; Styles v. Receivers, 118 N. C. 1084, at page 1088, 24 S. E. 740, at page 742, Phillips v. Chicago, 64 Wis. 475, 25 N. W. 544; Terre Haute & I. R. Co. v. Mansberger, 65 Fed. 196, 12 C. C. A. 574. It remains to apply to the facts in this case this principle of law thus resting on these two reasons: on the assumption that the plaintiff had her left hand under the machine and back of the shield, and that this was forbidden and improper. Plaintiff assumed this position in the master’s interest and in the performance of the work which it was her duty to perform. In that position she could have worked with absolute safety. It had become a part of the recognized method of work that warning should be given before the machine was started into operation. Moreover, a mere glance by the foreman would have shown 'her peril because her right hand, at least, was in plain sight on top of the machine. Engrossed as she was in work, she had a right to rely upon the performance by the master of his duty to give the usual signal. She was not bound to anticipate negligence on his part in this regard. If she had not been in the conceded position, it may be admitted that her injury could not have occurred. That position had, however, no natural tendency in the ordinary course of nature or of the operations of the factory to produce harm. If it had not been for the subsequent negligence of the master in starting the machine without warning the accident would not have occurred. It follows that the court was not in error in refusing to hold as a matter of law that plaintiff was guilty of contributory negligence which was the proximate cause of the harm of which she complains. Moreover, the rule is clear that a servant under the age of sixteen is required to exercise the amount of discretion which a person of his age and experience should exercise, and no more, and that is ordinarily a question for the jury. — 151 — Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45. And see Kaillen v. N. W. Bedding Co., 46 Minn. 187, 189, 48 N. W. 779; Sterling v. Union, 142 Mich. 284, 105 N. W. 755. 3. Defendant insists that the act of the foreman in starting the machine was the mere incident of the work and the negligence of a fellow servant, and therefore' assumed. There is no merit in this contention. The duty of giving warning was an absolute duty of the master which he could not delegate. The charge properly assumed that, if the jury found the facts submitted to it, then as a matter of law the foreman was a vice principal. Perras v. A. Booth & Co., 82 Minn. 191, 84 N. W. 739, 85 N. W. 179; Carlson v. N. W. Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. 534; Dizonno v. G. N. Ry. Co., 103 Minn. 120, 114 N. W. 736; Reiter-Connolly v. Hamlin, 144 Ala. 192, 40 South. 280; Comrade v. Atlas, 44 Wash. 470, 87 Pac. 517; 6 Current Law, 558. 4. Defendant also insists that the damages were excessive. The wound on the back of the hand near the juncture of the carpal and metacarpal bones caused the tissues of the hand-to atrophy in such a way as to interfere with the use of the-tendons attached to the top of the middle joints of the three fingers between the thumb and little finger. As the result of the wound there was a permanent disfigurement and deformity, the bones had been broken, and the injured hand had shrunken up. It was in a “condition of progressive atrophy with a tendency to shrivel up the hand.” No known operation would relieve her. The verdict seems large. The trial court, which alone was in a position to properly determine the question, sustained it. We feel constrained, within the familiar rule on the subject, to affirm his conclusion in this regard. Other assignments of error not herein specifically referred to have been considered and have not been found sufficient to justify the change of the conclusion here reached. Affirmed. ELLIOTT, J. I dissent.